FSUgirl07

PRETRIAL FOR CACH LLC!! PLEASE HELP!!

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HELP!! Being taken to court Nov 19th! Need to show for Pretrial and am not sure If I need to file any paperwork before hand. In Florida I don't believe I HAVE to but probably should.

I was thinking about answering the summons and state I WILL be in court, file Request for Production (not sure the procedure for this since it's small claims. Do I do this before/after. Does it matter?) and possibly answer to the alleged claims (confirm/deny line by line).

Any help is greatly appreciated!! Thank you in advance!!

1. Who is the named plaintiff in the suit?

CACH, LLC.

2. What is the name of the law firm handling the suit?

Rather not say, they might be snooping.

3. How much are you being sued for?

About $4,300

4. Who is the original creditor? (if not the Plaintiff)

Bank of America

5. How do you know you are being sued?

Process server at the door.

6. How were you served?

To me personally.

7. Was the service legal as required by your state?

Yes.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None!

9. What state and county do you live in?

Florida.

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

September 2010

11. What is the SOL on the debt? To find out:

5 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Just a notice requesting I appear for pretrial. Nothing else requested of me other than to show up.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No. This is the first I have heard from them even though they CLAIM they sent me a notice that they purchased the debt.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

No Interrogatory. Just request for me to appear for pretrial. "charges" are:

1. Defendant requested an account with Bank of America acc # XXXX (which acc # is wrong and I did NOT request an account with BOA. I think my original creditor was sold to/bought out by them but it was so long ago I don't know what the balances were. If I negotaited a pay off throughout the years. I allegedly opened the original card in 2002!

2.Defendant failed to make monthly payments...closed for failure to pay on or about 9/30/2010.

3.Plaintiff purchased the account from the original creditor...becoming the rightful owner.

4.Before the institution of this action, the original creditor and Defendant had business transactions between them and they agreed to the resulting balance.

5.The original creditor rendered statements to the defendant and the defendant did not object to any of the statements. (no idea what this means or what statements were made. were they verbal/written? no clue.)

6.The statements were received by the Defendant and retained without objection being made thereto on any item thereof.

7.The Defendant has not paid...Defendant refused to pay. (pay BOA or CACH?)

8.The Defendents account has a remaining balance of $4XXX exclusive of interest and court costs.

8.The Defendant was mailed an initial demand letter showing the assignment of the account to the Plaintiff.

9.The Plaintiff has complied with all conditions precedent to the filing of this statment of claim.

10. This is an attempt to collect a debt and any information obtained will be used for that purpose.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Exibit A: Affidavid of Sale and Certification of Debt

Exibit B: Several statements from 09-2010. (don't they have to substantiate the amount? Don't they need to provide ALL statements so I know where the total alleged amount came from?)

PLEASE HELP!! I've been driving myself crazy with research and have read so many different conflicting articles, blogs etc I don't know what to do!xheadscratchx

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Racecar got a nice post on case laws to dissmiss and account stated complaint in Florida, check that, and if you don't find it, I'll try.

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I'm new so I'm not sure how to find RaceCar or Linda7 or the threads you are mentioning. Any way I can get you to post a link to the thread you are referencing? Thanks so much!

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Like Bruno said, Linda7 is our resident pro on arb. Just do a search here on the board for arb. Lots of stuff on it, you should probably go that way. It should run them off as it will cost them $500.00 per hour for private arb. They don't like that.

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With CACH file a motion to compel arbitration ASAP. If your court allows motions to be heard, schedule it for the same day as trial and ask the judge to rule on your motion first. you may have to act fast as some times , no most of the times one has to give the other side advance notice on hearing *check your rules*

CACH will not arbitrate in JAMS I know this from experience.( read arbitration section JAMS is one of the arbitration forums).

BTW, BOA removed arbitration in June 2010, I think you're cutting it close, but heck CACH has no proof if arbitration does or does not apply to this alleged account, unless it brings someone from BOA who was record keeper and familiar with the alleged account.

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I've had this card since 2002 so I'm sure I could find some kind of agreement online somewhere that would benefit me. As I understand, it doesn't matter if they have been amended to remove arbitration in more rencent agreements if my contract was engaged while arbitration was still allowed correct?

I'm in Florida and this is just pretrial, so can't I just request arbitration AT pretrial/mediation? If so can I just verbally request it or do I need to have the request ready when I get there? Can I request it without even having a copy of the agreement?

Should I use the lack of my original contract being provided by CACH to my advantage? Could I not just fight them and say since they did not provide me with my original contract, I can't see if I am allowed to claim arbitration which would make a trial irrelevent and request the suit be dropped?

You have all been so helpful! I spent my entire night reading through Linda's arbitration thread. Still not done. I'll have a ton of questions once I am though! The clock is ticking. I'm hoping I don't run out of time and not file something I should have BEFORE pretrial. If anyone is familiar with Florida pretrial procedure please fill me in on the above as to whether I need to do anything BEFORE Pretrial or can I wait. Thanks again!

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One always asks the court on paper (it's called moving the court) this is done by filing motion papers such as (Motion to compel arbitration).

Make sure arbitration is referred to as "Private Contractual arbitration" and emphasize on "Per terms of the card agreement" , once a judge order arbitration but didn't read the papers so it went to "Judicial arbitration" which is not the same.

In FL be cautious filing an answer prior to submitting your motion , I heard one can waive arbitration rights , in some states arbitration must be brought as early as possible.

There is a BOA card agreement from 2003 with JAMS available.

File a notarized affidavit along with the motion to compel and attach to the card agreement. It will go along way when CACH wants to fight that agreement does not apply !

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One always asks the court on paper (it's called moving the court) this is done by filing motion papers such as (Motion to compel arbitration).

Make sure arbitration is referred to as "Private Contractual arbitration" and emphasize on "Per terms of the card agreement" , once a judge order arbitration but didn't read the papers so it went to "Judicial arbitration" which is not the same.

In FL be cautious filing an answer prior to submitting your motion , I heard one can waive arbitration rights , in some states arbitration must be brought as early as possible.

There is a BOA card agreement from 2003 with JAMS available.

File a notarized affidavit along with the motion to compel and attach to the card agreement. It will go along way when CACH wants to fight that agreement does not apply !

Where do I find such a card agreement? What should my affidavit say? Should I file BEFORE I get to pretrial or AT pretrial or does it matter? I have not filed any kind of answer. I believe here in Florida I don't have to do anything for pretrial other than show up so that is why I haven't done anything yet. Sorry for all the questions. I don't want to do something wrong!

Also, in your opinions, is arbitration the best route? Or, should I just fight them on other fronts such as Scienti et volenti non fit injuria, Lack of Privity, Repudiation, Failure of Consideration, and Insufficient specificity in a pleading?

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Another front to fight on would be; Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive. (CACH bought my debt for pennies on the dollar)

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I am not in FL but I know reading the rules of civil procedures will help you decide what to do.

Did you read FCPA, TCPA, FL consumer protection laws, TILA, FCRA, etc. ?

Do you happen to have any violations in regards to CACH?

If you are going to fight in any venue be it arbitration or court learn about your rights and the law.

Affidavit , here is a sample :

STATE OF XXXX

COUNTY OF XXX

PERSONALLY came and appeared before me, the undersigned Notary, the within named (XYZW), who is a resident of XYZ County, State of XYZ and makes this his/her statement and General Affidavit upon oath and affirmation of belief and personal knowledge that the following matters, facts and things set forth are true and correct to the best of his/ her knowledge:

I certify that I am over the age of 18.

DATED this day of November , 2012.

________________________

Signature of Affiant

SWORN to subscribed before me, this day November , 2012

____________________________

NOTARY PUBLIC

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Another front to fight on would be; Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive. (CACH bought my debt for pennies on the dollar)

This won't work, don't use this. Unjust Enrichment is only used when somebody already has your money, not when you haven't paid them anything. The amount they paid for the account is irrelevant and confidential and has no bearing on any defense. Legally, they are entitled to collect the full amount.

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Another front to fight on would be; Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive. (CACH bought my debt for pennies on the dollar)

This won't work, don't use this. Unjust Enrichment is only used when somebody already has your money, not when you haven't paid them anything. The amount they paid for the account is irrelevant and confidential and has no bearing on any defense. Legally, they are entitled to collect the full amount.

Good to know. I'll scratch this one.

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I am not in FL but I know reading the rules of civil procedures will help you decide what to do.

Did you read FCPA, TCPA, FL consumer protection laws, TILA, FCRA, etc. ?

Do you happen to have any violations in regards to CACH?

If you are going to fight in any venue be it arbitration or court learn about your rights and the law.

Affidavit , here is a sample :

STATE OF XXXX

COUNTY OF XXX

PERSONALLY came and appeared before me, the undersigned Notary, the within named (XYZW), who is a resident of XYZ County, State of XYZ and makes this his/her statement and General Affidavit upon oath and affirmation of belief and personal knowledge that the following matters, facts and things set forth are true and correct to the best of his/ her knowledge:

I certify that I am over the age of 18.

DATED this day of November , 2012.

________________________

Signature of Affiant

SWORN to subscribed before me, this day November , 2012

____________________________

NOTARY PUBLIC

I have breezed over them but not in detail yet. That's my next step after I get arbitration down. So many things to go over. So little time!

One I think I can claim is they did not properly notify me that they bought my debt so I didn't have a chance to request DV. If they sent me anything, I do not remember it and it wasn't via certified mail so they will have no proof they sent it and that I received it. When they sent me the court papers, you would think they would have included a copy of the letter/notification that THEY sent me if they sent one at all would they have not? Everything they sent me was from BOA.

The affidavit of sale looked kind of weird to me now that I think about what they did send me. At the bottom it had some type of form number like it was a generic form CACH uses. I work in Insurance so we have all kinds of forms we use that have dates that the form was made or valid etc. Wouldn't the affidavit be from Bank of America since they are the ones selling the debt and wouldn't it make sense that it would be a BOA form not a CACH form?? I thought that was a little strange. It had my name and account numbers and everything on it so it seems mine is more legit than most people have received...unfortunately.

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If arbitration is granted, you cannot file a counterclaim in court as there will be no case. You would have to sue for any FDCPA etc violations in Federal court, not for the weak at heart, I'll tell you that.

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Where do I find such a card agreement? What should my affidavit say?

BofA Card Member Agreement 2003

Your affidavit would attest to the fact that this is the Card Member Agreement that was in effect during the time this alleged account was open.

Look closely at the clause for the language regarding "survivability".

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So I get home today to find a letter from the attorney. The total amount now is a couple grand more?! The letter basically says this is the total amount you owe, we will settle for this amount if you send it to our office yada yada yada. If you don't we will feel free to procede as necessary... How can the amount be more?!?!?! It doesn't even include interest, court costs, attorney fees etc! Can I use this to my benefit some how? How can the amount magically be more?! :shock:

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That might be an FDCPA violation. Send a meet and confer with a copy of their new letter... ask how the new amount was calculated. If they added stuff not permitted by the contract, counterclaim against CACH for FDCPA violation and sue the law firm separately.

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That might be an FDCPA violation. Send a meet and confer with a copy of their new letter... ask how the new amount was calculated. If they added stuff not permitted by the contract, counterclaim against CACH for FDCPA violation and sue the law firm separately.

Since the suit was filed with one amount and the letter they sent has another and it states that fees, interest, court costs etc would still need to be added should I not settle, I imagine that this is a violation and they are probably just trying to scare me into settling with the higher amount! Has anyone else seen this or heard of this happening? I seem to remember reading something somewhere on here about this happening to someone else but I don't remember which thread!

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That might be an FDCPA violation. Send a meet and confer with a copy of their new letter... ask how the new amount was calculated. If they added stuff not permitted by the contract, counterclaim against CACH for FDCPA violation and sue the law firm separately.

Also, would my pretrial conference not be a meet and confer?

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First of all, stop and take a breath. Since this is small claims, you are not required to file an answer. You just show up at the appointed time on the date listed on your summons (get there about 30 minutes early just in case there is a change in courtroom - mine was changed from the second floor to the first floor the morning of the pre-trial to accommodate a lady in a wheelchair).

I can tell you that when I went to pre-trial, all I took with me was a yellow note pad, the summons, and the claim. Your name is called after the judge (or magistrate in my case) has gotten the plaintiff's attorney on the phone. You will be asked if you recognize the account and the amount claimed (I said no to both). Since my claim had no attachments, and I didn't 'recognize' the account, the magistrate ordered the attorney to send me documentation to 'prove up' their claim within 30 days. Now, the reason this is important is that they were ordered to provide documents without my having to ask for them formally. In small claims, if you are pro se and the plaintiff is represented by an attorney, the plaintiff cannot by rule send you RFP, Admissions, Interrogatories, etc. unless you request first [Rule 7.020(B)]. I'm thinking that since eight months have passed and I still haven't heard from them, they must be having difficulty locating the documentation to prove their claim. :mrgreen:

We have good, decent judges/magistrates here in my county. I got a smile from the magistrate and from the bailiff when I left the courtroom. I think they enjoyed the break in monotony of defendants either not showing up or if they did show up, they acted like sheep heading to slaughter.

Now, if you are contemplating filing for arbitration, I've heard of cases here in Florida where the judge insists you admit there is an underlying contract with the OC. Keep that in mind while you're processing your options. If you are going to file a motion to compel arbitration, you're required to send it to the plaintiff per procedure, although Rule 7.080(d) does allow for papers to be filed with the judge, at the judge's discretion, which you might get away with being the innocent, confused, emotionally distressed defendant being sued by people you've never heard of before the lawsuit. xangelx Also, you have to request arbitration before answering or the judge usually won't grant it. And, I agree with the other posters, Linda7 is awesome with her advice on arbitration strategy. Read her posts and pm her if you have any questions.

If you were not properly notified of the assignment, that is definitely a 'condition precedent' to bringing suit. Read posts by ladyhunter here in Florida (use the search function). FL statute 559.715 deals with assignment of debts - see if it applies to your situation, then contact her for advice.

Hopefully this will help you understand the process better and ease your mind a bit. I suggest, if you're able, you go to court and observe before your actual pre-trial date to get a feel for how the judge rules in these type of cases. Cach is beatable, just keep reading and by all means read the Small Claims Rules for Florida ~ located here:

http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/5E3D51AF15EE8DCD85256B29004BFA62/$FILE/Small%20Claims.pdf?OpenElement

or just google florida small claims rules if this link doesn't work. It's all about figuring out what your strategy is going to be and what you feel comfortable doing. I chose to go to pre-trial and basically said "prove it", but that's me and YMMV depending on how the judges in your county feel about these type cases.

Edited by sahm1998

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First of all, stop and take a breath. Since this is small claims, you are not required to file an answer. You just show up at the appointed time on the date listed on your summons (get there about 30 minutes early just in case there is a change in courtroom - mine was changed from the second floor to the first floor the morning of the pre-trial to accommodate a lady in a wheelchair).

I can tell you that when I went to pre-trial, all I took with me was a yellow note pad, the summons, and the claim. Your name is called after the judge (or magistrate in my case) has gotten the plaintiff's attorney on the phone. You will be asked if you recognize the account and the amount claimed (I said no to both). Since my claim had no attachments, and I didn't 'recognize' the account, the magistrate ordered the attorney to send me documentation to 'prove up' their claim within 30 days. Now, the reason this is important is that they were ordered to provide documents without my having to ask for them formally. In small claims, if you are pro se and the plaintiff is represented by an attorney, the plaintiff cannot by rule send you RFP, Admissions, Interrogatories, etc. unless you request first [Rule 7.020(B)]. I'm thinking that since eight months have passed and I still haven't heard from them, they must be having difficulty locating the documentation to prove their claim. :mrgreen:

We have good, decent judges/magistrates here in my county. I got a smile from the magistrate and from the bailiff when I left the courtroom. I think they enjoyed the break in monotony of defendants either not showing up or if they did show up, they acted like sheep heading to slaughter.

Now, if you are contemplating filing for arbitration, I've heard of cases here in Florida where the judge insists you admit there is an underlying contract with the OC. Keep that in mind while you're processing your options. If you are going to file a motion to compel arbitration, you're required to send it to the plaintiff per procedure, although Rule 7.080(d) does allow for papers to be filed with the judge, at the judge's discretion, which you might get away with being the innocent, confused, emotionally distressed defendant being sued by people you've never heard of before the lawsuit. xangelx Also, you have to request arbitration before answering or the judge usually won't grant it. And, I agree with the other posters, Linda7 is awesome with her advice on arbitration strategy. Read her posts and pm her if you have any questions.

If you were not properly notified of the assignment, that is definitely a 'condition precedent' to bringing suit. Read posts by ladyhunter here in Florida (use the search function). FL statute 559.715 deals with assignment of debts - see if it applies to your situation, then contact her for advice.

Hopefully this will help you understand the process better and ease your mind a bit. I suggest, if you're able, you go to court and observe before your actual pre-trial date to get a feel for how the judge rules in these type of cases. Cach is beatable, just keep reading and by all means read the Small Claims Rules for Florida ~ located here:

or just google florida small claims rules if this link doesn't work. It's all about figuring out what your strategy is going to be and what you feel comfortable doing. I chose to go to pre-trial and basically said "prove it", but that's me and YMMV depending on how the judges in your county feel about these type cases.

With mine they did send me proof that my OC sold to them (although it seems a little sketchy with some weird form # at the bottom which makes me think it's a generic form that CACH uses. I would think it should be from BOA not CACH) along with a couple of statements. I am not sure of the amount as I haven't been provided a complete charge/payment history as this card goes back to 2002. I also did not open a card with BOA. I opened it with a different card company so I'm not sure what happened but it's very confusing so I honestly can say I can't confirm or deny therefor I deny when I get to pretrial.

Should I do anything else at pretrial though? Should I use any of my defenses then or do I wait until it goes to actual trial? If I were to mention any of the defenses at pretrial, maybe it would make them just turn tail and run. Especially with the most recent letter I got with a totally different amount. I'm pretty sure that is NOT allowed.

Not to mention, they have my address wrong. I'm lucky I even got that letter because it was forwarded from my old address! I'm interested in how they found me. I might be able to use that as well if they contacted a third party to find me. I'd like to make sure they did it correctly.

With some of the violations I think I have them for, I can just use those by themselves as a defense can I not? I don't have to go through arbitration do I? If I go through arbitration I'm basically admitting to this alleged debt and I don't want to do that.

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The only way the can add court costs and attorney fees is if they are awarded by the court. That has not happened, so I would think this is an FDCPA violation - but against the firm and not CACH...

Send the meet and confer - remind the law firm that the addition of these fees absent an award is an FDCPA violation you'll be pursuing against both of them.

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Sahm has given great advice. calm down and be confident. The Cach attorneys are trying to push you, so make sure you have no fear of the court.

You can go in there and win if you say that you are not aware of any alleged account and was expecting them to appear at court since everyone else had to be there the court, the bailiff, the clerk and you. It goes against the confrontation clause to have a long distance trial.

So keep pounding that they haven't shown anything that leads anyone to believe their conclusory allegations.

Small claims court is supposed to be easier but for some reason people are afraid of it. fear not it is like Judge judy, or the peoples court.

To really tweak their beard so to speak, tell the judge you thought that in small claims court attorneys were not allowed. I say this because Cach is a Limited Liability Company and in small claims the parties are not allowed legal representation. A company is not a corporation.

So press to get the lawyer thrown out. And when if they do ask for discovery, make sure that you get to do discovery, also and tell the judge we are going to require a witness, because of Cach's previous behaviou in other states and this one. print a copy of the Cach LLC vs. Askew decision and enter it at trial.

So make sure you calm down and think Judge Judy.

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